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Gender Dysphoria in the Context of Child Protection Orders: WM v CEO of Department of Communities [2021] WASC 323

In November 2019, the CEO of the Department of Communities in Western Australia made an application for a Protection Order for a child, TM. The application was made pursuant to the Children and Community Services Act 2004 (WA) which makes provision for the protection of children. The Court can grant a Protection Order where a child requires protection, due to circumstances involving physical or emotional abuse or neglect. At the time, TM was 16 years of age and was an inpatient at the Perth Children’s Hospital, having been admitted due to distress and suicidal ideation. The CEO sought the Protection Order due to their concern that TM was experiencing family violence perpetrated by his parents.

Magistrate Dewsbury found in the Children’s Court that TM’s suicidal ideation was largely the product of the verbal and emotional abuse he experienced in the family home. More specifically, the abuse suffered by TM arose in the context of his gender dysphoria. The expert evidence heard by the Court indicated that TM experienced significant distress related to his gender dysphoria. This was largely due to the fact that TM’s parents did not support his views about his gender and responded with verbal and emotional abuse. Magistrate Dewsbury acknowledged that TM’s parent did not intend to cause any harm to their child, but they genuinely believed they were acting in his best interests. Magistrate Dewsbury found that TM’s parents were unwilling to recognise their son’s gender dysphoria and were unaware that TM has attempted to commit suicide. Although TM’s parents did not neglect their son, which is commonly the cause for granting a Protection Order, it was found that they failed to believe the seriousness of TM’s suicidal tendencies including ignoring the opinions of medical experts. TM was referred to by his parents as a “habitual liar”, and his views, which were expressed consistently and coherently, were not believed. Accordingly, Magistrate Dewsbury concluded that TM’s parents did not have a sufficient capacity to parent their son, and they would be unlikely to change their response to his needs such as to protect him from harm.

In assessing whether to grant the Protection Order, Magistrate Dewsbury made clear that the proceedings did not concern the causes of treatment for gender dysphoria. Rather, they concerned the application for a Protection Order for a distressed and suicidal child. In determining whether to grant the application, Magistrate Dewsbury gave weight to the paramount consideration in children’s matters, being the best interests of the child. TM’s parents’ reluctance to acknowledge the existence of their son’s gender dysphoria, and the derogatory language they used towards TM, amounted to emotional abuse. Magistrate Dewsbury therefore found that TM was in need of protection , and thereby granted the application in October 2020.

In September 2021, TM’s parents appealed Magistrate Dewsbury’s decision to the Western Australia Supreme Court . TM’s parents sought review of the decision upon several grounds, including that the decision erred in law and in fact, in finding that TM had suffered emotional abuse or neglect by his parents, when such findings were not reasonably open on the evidence. This ground was rejected by the Supreme Court on the basis that Magistrate Dewsbury did not make an express finding that TM had suffered from neglect. Additionally, the Supreme Court noted that Magistrate Dewsbury had in fact provided adequate reasons for the finding of emotional abuse and structured the reasoning in a logical manner. Having found that none of the grounds for appeal had sufficient prospects of success to warrant the grant of leave, the Supreme Court refused and dismissed the appeal. Consequently, the Protection Order will remain in place until TM reaches 18 years of age.

By Nicholes Family Lawyers

 

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